The Trafficking Defence in Criminal Law: Nexus and Compulsion

The United Kingdom has accepted international obligations under the Palermo Protocol, the Council of Europe Trafficking Convention, and the EU Trafficking Directive, in relation to the non-prosecution and non-punishment of victims of trafficking for offences they commit which are linked to their trafficking. The obligations are given effect by the Crown Prosecution Service (CPS) discretion not to prosecute, the abuse of process jurisdiction, the common law defence of duress, and the statutory defences under s 45 Modern Slavery Act 2015. In relation to adult victims of trafficking, in each case the question arises of whether they were compelled to commit the offence with which they are charged. This article shows how the English & Welsh courts and the CPS have had insufficient regard to the United Kingdom's international obligations in interpreting ‘compulsion’, and that improvements are necessary to prevent breaches of the United Kingdom's obligations and the re-traumatisation of victims of trafficking.


Introduction
The United Kingdom's international legal obligations require that it allows for the non-prosecution and non-punishment of certain victims of trafficking (VoTs) when they are accused of criminal offences. The prosecution of VoTs, often in violation of these international legal obligations, happens all too often when victims are trafficked for the purposes of exploitation through forced criminality, or when they commit offences to escape their traffickers.
The United Kingdom seeks to give effect to its international legal obligations through (i) prosecutorial discretion not to prosecute, in line with the Crown Prosecution Service (CPS) guidance on Modern Slavery, Human Trafficking and Smuggling; (ii) the abuse of process jurisdiction; (iii) the defence of duress; and (iv) statutory defences to some offences, contained in s 45 Modern Slavery Act 2015. In order to benefit from each of these ways by which the United Kingdom gives effect to its international obligations, a defendant may need to prove a nexus between their offending and their status as a VoT. For The United Kingdom's International Legal Obligations with Respect to Non-Prosecution and Non-Punishment

Definitions of Trafficking
Separate definitions of trafficking exist in respect of adults and in respect of children. I consider below the definitions in respect of adults contained within international legal instruments, then consider the modifications to those definitions that are made in respect of children.
The Palermo Protocol, 1 adopted on 15 November 2000, signed by the United Kingdom on 14 December 2000, and ratified by the United Kingdom on 9 February 2006, 2 provides the most influential definition of trafficking. It states that adults are VoTs if one of a limited number of actions ('recruitment, transportation, transfer, harbouring or receipt of persons') are accomplished by one of a limited number of means ('threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person') for the purpose of exploitation (which includes at a minimum 'the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs'). 3 Where the means have been used, consent to the intended exploitation is irrelevant. 4 On 1 April 2009 the Council of Europe's Trafficking Convention 5 (the Trafficking Convention) entered into force in respect of the United Kingdom. 6 As set out below, it creates substantive obligations on the United Kingdom in respect of non-prosecution of VoTs. Article 4 of the Trafficking Convention adopts the definition of trafficking in adults contained in the Palermo Protocol.
Further, on 5 April 2011 the European Union adopted Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims (the Trafficking Directive). 7 The Trafficking Directive adopts a wider definition of trafficking in adults than the Palermo Protocol does. It includes all of the actions, means, and purposes contained in the Palermo Protocol. However, it also clarifies that the exchange or transfer of persons is included within the proscribed actions, and includes both begging and the exploitation of criminal activities within the proscribed exploitation.
In respect of trafficking in children, the Palermo Protocol, the Trafficking Convention, and the Trafficking Directive all agree that where the action is present, for the purpose of exploitation, this will be considered trafficking even if none of the means are used. 8

Non-Prosecution and Non-Punishment (Non-Liability) Obligations
Obligations in relation to the non-prosecution or non-punishment of VoTs may collectively be referred to as 'non-liability' obligations. The Organization for Security and Co-operation in Europe (OSCE) Office of the Special Representative and Co-ordinator for Combating Trafficking in Human Beings notes that the principled origin of non-liability obligations is in the recognition that, 'The punishment of victims of trafficking for crimes directly related to their trafficking is a violation of their fundamental dignity. It constitutes a serious denial of reality and of justice. Such punishment blames victims for the crimes of their traffickers, for crimes that, but for their status as trafficked persons, they would not have perpetrated '. 9 As the UN Special Rapporteur on Trafficking in Persons has noted, 'the more traffickers can rely on a State's criminal justice system to arrest, charge, prosecute and convict trafficking victims for their trafficking-related offences, whether criminal, civil or administrative, the better are the conditions for traffickers to profit and thrive, unencumbered in their criminality and undetected by the authorities'. 10 In this light, as the UN Office on Drugs and Crime has noted, 'Identification of victims of trafficking among perpetrators is also essential to ensure the potential application of the non-punishment principle. It is also a precondition to granting victims access to the forms of assistance and protection necessary to escape exploitative situations and rebuild their lives '. 11 3. Palermo Protocol Article 3(a). 4. Ibid Article 3(b The drafters of the Palermo Protocol chose not to include a non-liability principle within the final text. As Anne Gallagher notes (citing the travaux préparatoires of the Palermo Protocol 12 ), 'efforts to encourage States to include a provision on this issue were not accepted '. 13 In this light, for VoTs the Palermo Protocol is of little use as a tool to protect them from liability resulting from the consequences of having been trafficked. As Molly Smith and Juno Mac have pointed out, the Palermo Protocol is 'a descendant of the Convention Against Transnational Organised Crime. As such, it is concerned with criminalisation, not healing (or even harm reduction) for marginalised people'. 14 Against this background, non-liability obligations cannot be derived from the Palermo Protocol itself.
In the drafting of the Trafficking Convention, the Council of Europe reacted to this absence of protective force in the Palermo Protocol. The Trafficking Convention supplemented the obligations on states which derive from Articles 4 and 6 of the European Convention on Human Rights (ECHR). The Trafficking Convention created an obligation on ratifying states to provide for the possibility of not imposing penalties on VoTs for criminal offences they have been compelled to commit. The specific wording of the Trafficking Convention is important: Article 26 -Non-punishment provision Each Party shall, in accordance with the basic principles of its legal system, provide for the possibility of not imposing penalties on victims for their involvement in unlawful activities, to the extent that they have been compelled to do so. (emphasis added) It is apparent from this wording that the Trafficking Convention requires protection of VoTs only in cases of compulsion. 'Compulsion' is not further defined within the Trafficking Convention itself. However, the Explanatory Report to the Trafficking Convention provides some assistance. It does not refer to compulsion being by a person. Rather, it simply requires that involvement in the unlawful activity results from compulsion: This leaves open the possibility of compulsion resulting from circumstances, rather than, for example, from the dominant force of another (such as a trafficker). What is clear from the Trafficking Convention and its Explanatory Report is that 'compulsion' is an autonomous concept of international law. As such, its definition arises from international legal instruments, not from the domestic law of England & Wales.
Article 8 of the Trafficking Directive, which was introduced after the Trafficking Convention, contains a non-liability provision, but it is drafted differently to that contained within the Trafficking Convention. It applies where a VoT has been compelled to commit an act as a direct consequence of being subjected to trafficking. In these circumstances, Article 8 creates an obligation on states to ensure that prosecutors and courts are entitled not to prosecute or impose penalties on VoTs, as follows: Member States shall, in accordance with the basic principles of their legal systems, take the necessary measures to ensure that competent national authorities are entitled not to prosecute or impose penalties on 12 victims of trafficking in human beings for their involvement in criminal activities which they have been compelled to commit as a direct consequence of being subjected to any of the acts referred to in Article 2. 16 In contrast to the simple non-punishment provision which exists within the Trafficking Convention, the Trafficking Directive introduces both a non-punishment provision and an additional non-prosecution provision. As Marija Jovanovic has noted, 'the Anti-Trafficking Directive shifts the attention to earlier stages in the criminal law chain thereby involving different actors (such as police and public prosecutor service)'. 17 Once again though, the Trafficking Directive refers to compulsion. Recital 14 of the Directive provides the justification for the provisions of Article 8. It specifically refers to protection from prosecution or punishment for acts that a person has been 'compelled to commit as a direct consequence of being subject to trafficking': (14) Victims of trafficking in human beings should, in accordance with the basic principles of the legal systems of the relevant Member States, be protected from prosecution or punishment for criminal activities such as the use of false documents, or offences under legislation on prostitution or immigration, that they have been compelled to commit as a direct consequence of being subject to trafficking. The aim of such protection is to safeguard the human rights of victims, to avoid further victimisation and to encourage them to act as witnesses in criminal proceedings against the perpetrators. This safeguard should not exclude prosecution or punishment for offences that a person has voluntarily committed or participated in.
However, as Julia Muraszkiewicz questions, we may ask, 'What does 'direct consequence' mean? Reason dictates that it is linked to the proximity of the crime to the trafficking situation'. 18 Muraszkiewicz, suggests that a 'strict construction approach' would require a very close degree of proximity between the trafficking and the offending, and that this offers inadequate protection. 19 However, although Muraszkiewicz's interpretative approach is plainly strict (in that it is restrictive), for two principal reasons it is wrong to describe it as a 'strict construction approach'. Firstly, in ordinary language direct consequence is capable of being a type of causation, rather than meaning that there is proximity to the trafficking. When interpreting 'direct consequence' there is no reason why a 'strict construction approach' would favour proximity of the crime to the trafficking situation over mere causation between the trafficking situation and the crime. Secondly, strict construction of criminal law provisions constrains the extent of offences, rather than defences.
On any analysis though, the interpretation of 'compulsion' required by the international legal instruments is far away from a test based on dominant force of another, and is instead in the realm of consequence. Notably, the law on an international level, which creates obligations for the United Kingdom, has developed in a way which has increased the protection available to VoTs. The international legal regime has moved from the Palermo Protocol, with its absence of specific non-liability requirements, through the Trafficking Convention, the drafting of which leans away from treating compulsion as requiring the dominant force of another, and reached the Trafficking Directive, which is wholly inconsistent with defining compulsion as involving the dominant force of another and would be consistent with an interpretation of compulsion which is connected to consequences of being subjected to trafficking.
The continuing relevance of the Trafficking Directive for the interpretation of the United Kingdom's international obligations in respect of the protection of VoTs was not questioned by any party or by the court itself in either of the leading cases decided after the end of the implementation period, R v Brecani 20 and R v AAD, AAH, and AAI. 21 This is unsurprising given that the 'rights, powers, liabilities, obligations, restrictions, remedies and procedures' arising out of the Directive continued in force by virtue of s 4 of the European Union (Withdrawal) Act 2018. When it enters into force s 68(1) of the Nationality and Borders Act 2022 will disapply the 'rights, powers, liabilities, obligations, restrictions, remedies and procedures derived from the Trafficking Directive' insofar as they are inconsistent with any provision made by or under the Nationality and Borders Act 2022. However, there is no reason to believe that this would relate to the definition of trafficking or the trafficking defence in criminal law.
The protective provisions of the Trafficking Convention and the Trafficking Directive have been complemented by an OSCE Ministerial Declaration dated 7 December 2011. Importantly it provided as follows in relation to non-punishment and non-prosecution: 10. We recognize that adequate measures should be taken to ensure that, where appropriate, identified victims of human trafficking are not penalized for their involvement in unlawful activities to the extent that they have been compelled to do so. We urge participating States to implement comprehensive and appropriate measures on assistance to victims of trafficking in persons. 22 (emphasis added) Additional guidance on the interpretation of the definition of 'compulsion' can be taken from the Policy and Legislative Recommendations created by the OSCE's Office of the Special Representative and Co-ordinator for Combating Trafficking in Human Beings. 23 These recommendations lean towards an interpretation of compulsion based on the consequences of the victim's situation as a trafficked person. The recommendations consistently provide a test of 'offences caused or directly linked to having been trafficked'. 24 The recommendations include that, 'The punishment of victims of trafficking (for crimes that are caused or directly linked to their having been trafficked) constitutes a serious denial of justice. States are obliged not to impose penalties for crimes committed by trafficked persons as a consequence, or in the course, of their having been trafficked'. 25 The 2014 Protocol to the International Labour Organization (ILO) Forced Labour Convention 1930 26 (the 2014 ILO Protocol) further developed the interpretation of 'compulsion'. It refers to compulsion to commit offences as a direct consequence of being subjected to forced or compulsory labour, as follows: 1. Each Member shall ensure that all victims of forced or compulsory labour, irrespective of their presence or legal status in the national territory, have access to appropriate and effective remedies, such as compensation. 2. Each Member shall, in accordance with the basic principles of its legal system, take the necessary measures to ensure that competent authorities are entitled not to prosecute or impose penalties on victims of forced or compulsory labour for their involvement in unlawful activities which they have been compelled to commit as a direct consequence of being subjected to forced or compulsory labour. (emphasis added) applying the Vienna Convention Article 18, 27 the approach of the United Kingdom's domestic authorities, including its courts, must be informed by an obligation not to take actions which would defeat the object and purpose of the 2014 ILO Protocol. As Lord Hoffman held in R v Lyons 28 at paragraph 27 'there is a strong presumption in favour of interpreting English law (whether common law or statute) in a way which does not place the United Kingdom in breach of an international obligation'. In this light, the United Kingdom, and its domestic courts, may be said to be obliged to apply an interpretation of 'compulsion' consistent with the direct consequence approach.
In addition, the European Court of Human Rights (ECtHR) has held that the ECHR creates obligations on states with regard to trafficking. Article 4 of the ECHR which deals with the prohibition on slavery and forced labour provides insofar as is relevant: 1. No one shall be held in slavery or servitude. 2. No one shall be required to perform forced or compulsory labour.
In the case of Rantsev v Cyprus and Russia 29 the ECtHR at paragraph 286 held that Article 4 of the ECHR places positive obligations on States to protect against human trafficking, including by requiring 'a State to take operational measures to protect victims, or potential victims, of trafficking' where the state was 'aware, or ought to have been aware, of circumstances giving rise to a credible suspicion that an identified individual had been, or was at real and immediate risk of being, trafficked or exploited within the meaning of Article 3(a) of the Palermo Protocol and Article 4(a) of the Anti-Trafficking Convention'. The ECtHR further held at paragraph 288 that the right under Article 4 of the ECHR included a procedural obligation on the state to investigate situations of potential trafficking.
In VCL and AN v United Kingdom, 30 at paragraphs 98 and 158, the ECtHR used the 2014 ILO Protocol alongside other international instruments including the Trafficking Convention, the Trafficking Directive, and the OSCE Ministerial Declaration, as an interpretative guide to Article 4 of the ECHR, and the non-liability obligations in trafficking cases which flow from Article 4. As such, even without the United Kingdom having directly implemented the 2014 ILO Protocol in domestic law, through the jurisprudence of the ECtHR the 2014 ILO Protocol remains highly relevant to the interpretation of the United Kingdom's international obligations.
A further important impact of the ECtHR judgment in VCL and AN v United Kingdom was that, through Article 4 of the ECHR, states' international obligations to consider non-liability could become justiciable rights to non-liability possessed by VoTs. In particular, the ECtHR held at paragraph 150 that states' positive obligations under Article 4 of the ECHR must be construed in light of the Trafficking Convention. The ECtHR went on to hold, in particular at paragraph 159, that prosecution itself may violate Article 4 of the ECHR, stating that, 'the prosecution of victims, or potential victims, of trafficking may, in certain circumstances, be at odds with the State's duty to take operational measures to protect them where they are aware, or ought to be aware, of circumstances giving rise to a credible suspicion that an individual has been trafficked'.
Ss 3 and 4 of the Human Rights Act 1998 in turn place an obligation on domestic authorities, including courts, to interpret domestic law in accordance with ECHR rights and ECtHR case law.
The impact of these developments is that this constellation of international legal instruments shows an evolving obligation, which the United Kingdom has voluntarily accepted, to consider applying nonliability provisions to VoTs. Each development in the international legal sphere has increased the extent of the United Kingdom's obligations to protect victims from the consequences of having been 27 The United Kingdom claims to give effect to its international obligations with respect to non-liability in four overlapping ways. These are (i) discretion in the CPS decision to prosecute; (ii) the jurisdiction to stay proceedings as an abuse of process; (iii) the defence of duress; and (iv) the statutory defences to some offences, contained in s 45 Modern Slavery Act 2015. I consider each of these below, although the consideration is specific to adults, not children.

Discretion in the CPS Decision to Prosecute
In the United Kingdom, VoTs are identified by the Single Competent Authority (SCA) after a referral through the National Referral Mechanism (NRM). The SCA is the expert authority designated by the United Kingdom in accordance with its international obligations to identify VoTs. Where a referral to the SCA is made, there will firstly be a decision about whether there are reasonable grounds to believe that the person is a VoT (the RG decision). The RG decision may be positive or negative. If the RG decision is negative then the referral comes to an end. If the RG decision is positive then there will be consideration of whether there are conclusive grounds to believe that the person is a VoT (the CG decision). If the CG decision is negative then the referral comes to an end. If the CG decision is positive then the person referred is recognised as a VoT, with all of the legal entitlements that accompany this recognition.
The CPS has published guidance on Modern Slavery, Human Trafficking and Smuggling. 31 When systems operate as they should, in cases where there is consideration of prosecution of a recognised VoT, the CPS is able to exercise its discretion to decline to prosecute, or to discontinue a prosecution, or to offer no evidence against a VoT. This allows the United Kingdom to ensure that it complies with not only the non-punishment obligation, but also the non-prosecution obligation.
The application of this CPS guidance requires a consideration of the two-stage Full Code Test. Except in some limited circumstances where the Threshold Test is used, and where the Full Code Test must later be used in any event, the Full Code Test is used by the CPS in deciding whether to commence a prosecution. When new information comes to the attention of the prosecutor, it is also used in deciding whether to continue a prosecution. The Full Code Test contains an evidential test and a public interest test. The evidential test is whether the prosecutor believes that there is a realistic prospect of conviction. Where the evidential test is satisfied, the prosecutor must consider whether the public interest test is satisfied. If either of the evidential test or the public interest test is not satisfied, then the prosecution cannot proceed. In the case of VoTs who are prosecuted, the public interest test requires prosecutors to take account of the following: Prosecutors should consider the factors in the Code for Crown Prosecutors with specific consideration of the following: • The seriousness of the offence. • The harm caused to the victim.
• The suspects age and maturity.
Additionally, Prosecutors should still consider the following: • Whether there is a nexus between the trafficking/slavery or past trafficking/slavery and the alleged offending; and, if so, • Whether the dominant force of compulsion from the trafficking/slavery or past trafficking/slavery acting on the suspect is sufficient to extinguish their culpability/criminality or reduce their culpability/criminality to a point where it is not in the public interest to prosecute them.
Prosecutors may in certain limited circumstances disagree with a positive CG decision. However, in VCL and AN v United Kingdom the ECtHR set out a test which must be satisfied if a prosecutor or court is to disagree with a SCA decision that a person is a VoT. Any disagreement with a positive CG decision must take place solely on the basis of 'clear reasons which are consistent with the definition of trafficking contained in the Palermo Protocol and the Anti-Trafficking Convention'. 32

Stay for Abuse of Process
Secondly, there is a jurisdiction to stay proceedings as an abuse of process if the defendant is a VoT. As the Court of Appeal held in R v AAD, AAH, and AAI 33 at 142(4): If (in what will be likely to be a most exceptional case) there has been a failure to have due regard to CPS guidance or if there has been a lack of rational basis for departure by the prosecution from a conclusive grounds decision then a stay application may be available. It will then be assessed by the court, by way of review on grounds corresponding to public law grounds.
Notably, this reference to public law grounds should not be considered as a reference to a requirement for the prosecution decision to be Wednesbury unreasonable. All public law grounds are available. Further, as the Court of Appeal was at pains to make clear in R v L(C) 34 when the existence in trafficking cases of the jurisdiction to stay proceedings as an abuse of process was first elucidated, the first instance court's jurisdiction is not merely analogous to judicial review, with review on Wednesbury grounds. As the Court of Appeal held in R v L(C): In the context of an abuse of process argument on behalf of an alleged victim of trafficking, the court will reach its own decision on the basis of the material advanced in support of and against the continuation of the prosecution. Where a court considers issues relevant to age, trafficking and exploitation, the prosecution will be stayed if the court disagrees with the decision to prosecute. 35 That statement of the law has not been subsequently overturned. duress as a defence. However, in R v LM 38 the Court of Appeal set out just how limited the defence of duress is for VoTs, noting that there was no modification to the defence to account for the specific circumstances of VoTs. The Court of Appeal held that duress requires a 'direct (not indirect) result of a threat of death or serious injury aimed at the defendant or someone sufficiently close' to them, and is not available if there was 'evasive action which the defendant could reasonably be expected to take, including report to the authorities' or if the defendant 'voluntarily associated' with people such that they lay themselves open to compulsion to commit offences.

The Defence of Duress
Notably, the nature of trafficking means that, in defining whether someone is a VoT, consent is irrelevant when the means of trafficking were used. 39 Trafficked people who consented to the action of trafficking, and commit crimes as a result, are still entitled to protection as VoTs, including non-prosecution and non-punishment. As such, the defence of duress is not available in a wide number of circumstances in which a person's circumstances fulfil the definition of trafficking and in which they are entitled to nonpunishment and non-prosecution.
In light of the limited nature of the defence of duress, case law on the protection of VoTs has focussed on the other ways by which the United Kingdom has given effect to its international legal obligations in respect of non-liability.

The Statutory Defences to Some Offences, Contained in s 45 Modern Slavery Act 2015
Finally, if a case proceeds to trial, there are statutory defences to certain criminal offences which are available to VoTs. Separate defences apply to defendants who are under 18 and defendants who are 18 or over. The defence under s 45(1) Modern Slavey Act 2015 is applicable to adult victims of trafficking and modern slavery who have been compelled to commit an act which is a criminal offence, and where the compulsion is attributable to trafficking or slavery. In providing interpretation of s 45(1), s 45(2) is explicit that 'A person may be compelled to do something by another person or by the person's circumstances'.
Notably, this is different to the test for child VoTs, in respect of whom the defence in s 45(4) does not require compulsion in order for the defence to be established. The United Kingdom has faced criticism from the Council of Europe's Group of Experts on Action against Trafficking in Human Beings (GRETA) for the limited nature of the defence under s 45(4). The defence includes a requirement that 'a reasonable person in the same situation as the person and having the person's relevant characteristics would do that act'. This leaves open the question for the decision maker of why the person in the same situation would act as they did. GRETA criticises this because the test 'indirectly introduces an element of compulsion that should not have to be proven in children's cases.' 40 However, whether for adults or for children, the statutory defences are of limited practical effect. Firstly, the offences to which the defences apply are subject to a 'long and somewhat arbitrary list of exclusions'. 41 This list, contained within Schedule 4 of the Act, includes offences which VoTs are often forced to commit, including offences relating to trafficking itself. Indeed, many paradigm cases of trafficking, such as the trafficking victim who remains in a trafficked position but instructs other traf- noted, the list of excluded offences is so wide that it 'has the potential to undermine the effectiveness of the defence'. 43 A second limitation on the practical effect of the s 45 defences is that the defences do not have retrospective effect. 44 As such, people who were convicted before the coming into effect of s 45 cannot seek to have their convictions overturned on the basis that they should have had access to a defence.
A third limitation on the practical effect of the s 45 defences is that, even when they can successfully be relied upon at trial, a VoT may still be prosecuted. The CPS may take the view that whether or not a defence applies is a matter for a jury to determine. My and many of my colleagues' experience in practice at the criminal bar is that this is a common approach taken by the CPS. However, taking this approach arguably violates the VoT's right to non-prosecution, and the United Kingdom's international obligations in this regard.
Successfully accessing a s 45 defence will often require the VoT to give evidence in court. This is particularly the case following the case of Brecani 45 in which the Court of Appeal dismissed an appeal against conviction in a case where, at trial, the CPS had refused to make an admission that there had been a positive CG decision, and the judge had rejected an application from the defence to admit the CG decision as expert evidence.
In order to rely on the s 45 defence, the oral evidence that a VoT is required to give at trial will necessarily relate to the often-traumatic trafficking experiences they suffered. In the context of VoTs who are complainants in criminal trials it has been noted that, 'Cross-examination can be a painful and traumatic experience for vulnerable witnesses, including victims of offences such as human trafficking' 46 and victims may, 'suffer secondary victimisation by having to relive' 47 their experiences. The situation must be even worse for those victims who give evidence as defendants, when their freedom is at stake. Indeed, the ECtHR recognised this precise point in VCL & AN v United Kingdom, holding: It is axiomatic that the prosecution of victims of trafficking would be injurious to their physical, psychological and social recovery and could potentially leave them vulnerable to being re-trafficked in future. Not only would they have to go through the ordeal of a criminal prosecution, but a criminal conviction could create an obstacle to their subsequent integration into society. In addition, incarceration may impede their access to the support and services that were envisaged by the Anti-Trafficking Convention. 48 As Sean Mennim has noted, 'the very act of going through the prosecution itself and the process is incompatible with the protective duty'. 49 This underlines the importance of early identification of victims through an NRM referral, undertaken at the earliest stage of the case. In particular, compliance with the United Kingdom's procedural obligations towards VoTs arising from the ECtHR judgment in Rantsev v Cyrprus and Russia, alongside its substantive obligation of non-prosecution, requires that the United Kingdom's authorities act early to identify victims, and to remove the need for them to rely upon a s 45 defence at trial.

Conclusions About the Methods by Which the United Kingdom Implements Its International Legal Obligations
The inadequacy of the common law defence of duress and the statutory defences under s 45 Modern Slavery Act 2015 underlines the importance of the CPS decision to prosecute and the jurisdiction to stay proceedings for abuse of process. It is only these protective mechanisms which remove the need for a trial to take place, and which can guarantee the United Kingdom's compliance with both of its nonpunishment and non-prosecution obligations in respect of all VoTs. However, as I set out below, in its consideration of the nexus between the victim's situation as a trafficked person and the commission of an offence, the English & Welsh courts' failure to correctly interpret the autonomous international law concept of 'compulsion' has led to failures to comply with the United Kingdom's protective obligations, and risks continuing to do so in future.

How the English & Welsh Courts Have Interpreted the Requirement for a Nexus Between a Defendant's Offending and Their Status as a Victim of Trafficking
In the case of R v LM 50 the Court of Appeal began to grapple with the concepts of nexus and compulsion. The Court discussed the CPS guidance, which it interpreted as meaning that the public interest in prosecuting may not be satisfied when an 'offence may have been committed as a result of compulsion arising from the trafficking'. If applied appropriately, that definition could be consistent with the international legal instruments. The Court described this as, 'a nexus of compulsion (in the broad sense)'. 51 The Court contrasted it with a scenario when it may be appropriate to prosecute, when 'even if the defendant has previously been a trafficked victim, if the offence appears to have been committed outwith any reasonable nexus of compulsion (in the broad sense) occasioned by the trafficking, and hence is outside art.26 '. 52 In the case of R v L(C) the offence was not committed via direct compulsion. However, an appeal against conviction was nonetheless allowed. The Court held in relation to L that, 'the offence she actually committed appears to us to have arisen as a result of her being a victim of trafficking who was provided with a forged passport for her to use as if it were genuine, and the use of it represented a step in a process by which she would escape'. 53 Importantly, the Court treated compulsion as being related to her committing an offence 'as a result of' the trafficking situation. The Court reached that interpretation partly as a result of the principled reasoning for the jurisdiction to stay proceedings as an abuse of process in a trafficking case existing at all. As the Court noted: The court protects the rights of a victim of trafficking by overseeing the decision of the prosecutor and refusing to countenance any prosecution which fails to acknowledge and address the victim's subservient situation, and the international obligations to which the United Kingdom is a party.
[…] It stands between the prosecution and the victim of trafficking where the crimes are committed as an aspect of the victim's exploitation. 54 The Court in R v L(C) went on to focus on the extent to which an offence was 'integral to or consequent on the exploitation' of which the person was a victim, and whether the person 'was under levels of compulsion which mean that, in reality, culpability was extinguished'. 55 That of course makes no reference to compulsion by the dominant force of another. After the judgment in R v L(C), Parliament introduced the statutory defences in s 45 Modern Slavery Act 2015. S 45(2) explicitly states that, for the purpose of the s 45(1) defence, 'A person may be compelled to do something by another person or by the person's circumstances'. There is no reason in principle why the common law approach to the definition of compulsion should be any narrower than the approach set out in s 45(2). The approach in s 45 (2) is consistent with a definition of compulsion as compulsion 'in the broad sense', consistent with the autonomous international law definition of 'compulsion'.
Despite the approach taken in R v L(C) and s 45, which are capable of being consistent with the autonomous international law definition of compulsion, in R v AAJ 56 the Court of Appeal appears to have taken a potentially wrong turn, moving away from an interpretation of compulsion in the broad sense, to allowing for compulsion to be dependent upon the 'dominant force of another individual or group'. The Court of Appeal held that the 'reason for diminution or extinction of culpability' in trafficking cases, 'is not merely from age, but also where there is [not] the realistic alternative available but to comply with a dominant force of another individual or group'. 57 The requirement in AAJ for there to be 'no realistic alternative' derives from part of the test for establishing a defence under s 45(1)(d) of the Modern Slavery Act 2015. S 45(1)(d) in turn reflects the definition of 'position of vulnerability' in Article 2(2) of the Trafficking Directive, which is 'a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved'. This definition in Article 2(2) of the Trafficking Directive provides a gloss on one of the 'means' of traffickingabuse of a position of vulnerabilitywhich appears in each of the Palermo Protocol, the Trafficking Convention, and the Trafficking Directive.
However, a requirement in AAJ for the existence of the 'dominant force of another' cannot be derived from the intentions of the drafters of the Trafficking Convention or Trafficking Directive. Nor can a requirement for 'dominant force of another' be derived from the intentions of the United Kingdom in implementing the Trafficking Convention or Trafficking Directive, or the introduction of s 45 of the Modern Slavery Act 2015. Insofar as the Court in AAJ used 'dominant force of another' as a reason for non-liability obligations existing, rather than being a component part of the test for compulsion, it did not change the law, but rather provided a skewed view of the reasons for the law being what it is. In any event though, it risked setting out a dangerous argument for the narrowing of the scope of compulsion, which fortunately the domestic courts at a senior level have not chosen to take forward. Whether the English & Welsh courts have done so at first instance though requires empirical study.
The test in L(C) of an offence being, 'Integral to or consequent upon the exploitation', if correctly applied, is a test for compulsion which is capable of being compliant with the United Kingdom's international obligations. In contrast, a test of compulsion being due to the 'dominant force of another' is not, unless it is read in a wide sense, so that it amounts to the same as 'consequence of their situation as a trafficked person'. Indeed, such an approach is the only way of reconciling AAJ with both L(C), and the autonomous international law definition of compulsion.
In R v AAD, AAH, and AAI the Court of Appeal gave guidance on the nature of 'compulsion'. The Court of Appeal considered Bijan Hoshi's suggestion, 58 dating from before the enactment of the s 45 defences, that any defence should be founded on causation rather than compulsion.

Discussion and Conclusions
What we see from the jurisprudence of the Court of Appeal is a wide range of definitions given for 'compulsion', with some degree of clarity on what it is not (causation) but insufficient clarity on what it is. The Court of Appeal has failed on several occasions to make explicit how 'compulsion' is to be defined, in accordance with the United Kingdom's international law obligations. However, explicitly ceding authority to international bodies for defining this important term would be appropriate and in line with the United Kingdom's international commitments. It is from the voluntary acceptance of obligations contained within international legal instruments that the United Kingdom's obligations in respect of VoTs derive. As such, elements of English & Welsh law which seek to implement those obligations should do so faithfully to the definitions set out in those international legal instruments.
As I have set out above, the domestic authorities and in particular the courts are constrained to interpret the law on trafficking in line with the requirements of the ECtHR, in particular as set out in VCL & AN v United Kingdom. When interpreting Article 4 of the ECHR, in VCL & AN v United Kingdom the ECtHR gave effect not only to the Palermo Protocol, the Trafficking Convention, and the Trafficking Directive, but to a broader range of international legal instruments. These included the 2014 ILO Protocol and the OSCE Ministerial Declaration referred to above. As such, the ECtHR's jurisprudence reflects this progressive move within the international legal authorities to afford VoTs a wider scope of protection, by widely interpreting 'compulsion'.
In order to give effect to the United Kingdom's international obligations, and to afford protection to VoTs, the Court of Appeal should develop English & Welsh law by explicitly taking up the interpretive approach of the ECtHR, both in terms of process and result. This approach would see the Court of Appeal in its judgments fully give effect to the evolution of both the ECtHR's jurisprudence, and the international legal landscape. This would involve ensuring that compulsion 'in the broad sense' as it applies in domestic law is given the same meaning as the most progressive elements of international law, which in turn reflect the United Kingdom's current freely-chosen international legal commitments. This would involve interpreting compulsion as being something which is consequent upon the trafficking situation, and which derives from the vulnerable positions of trafficking victims.
Indeed, there is a principled basis for this approach. The means of trafficking themselves involve compulsion, as does the continuing effect of those means in the exploitation to which VoTs are subject. The effect of trafficking which reduces a VoT's culpability, and therefore removes the justification for punishment of them, is that they lose their autonomy, or as the OSCE Office of the Special Representative has conceptualised it, they 'lose the possibility to act with free will'. 60 If the nexus required to access nonliability provisions is conceptualised as a consequence of the victim's situation as a trafficked person, then 'compulsion' is embedded within the nexus: it is contained within both the means and the exploitation. Means of trafficking and exploitation, compulsion, loss of the possibility to act with free will, and non-liability, are all conceptually linked.
Until the Court of Appeal makes explicit that this is how compulsion must be applied by the domestic courts and other domestic authorities such as the CPS when it makes decisions on whether to prosecute, there will be a risk of domestic courts and other domestic authorities falling into error in their interpretations. This places VoTs at a continuing risk of having their rights to non-prosecution and non-punishment violated, and being subject to the trauma of wrongful arrest, trial, and imprisonment. Against the 59. AAD, AAH, and AAI, R v (n 21) para 145. 60. Office of the Special Representative and Co-ordinator for Combating Trafficking in Human Beings (n 9) 11. background of the United Kingdom's international obligations, there is scope for a more protective jurisprudence to develop.